HKSAR v. NGAN CHEUNG LAP

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 21
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to two counts of conspiracy to rob and two counts of burglary and was sentenced to 11 years' imprisonment. He now seeks leave to appeal against this total sentence.

2. The Applicant was a resident of Shenzen. He was approached by a Hong Kong resident who offered to sneak him into Hong Kong for the purpose of "making money together". He agreed to this and entered Hong Kong illegally together with two other men. They were taken by the Hong Kong resident who was Mr. WONG Kwan-fuk, to a hut on the hillside near Redhill. They were shown two pistols, one of which was a fake and the other one genuine. They were told that these would be used in the robberies they would be committing.

3. As regards the first two conspiracy counts the men were taken by Wong to the Repulse Bay Carpark and instructed to target expensive cars entering the carpark. They were to approach the cars when the occupants were leaving them and force them back into the cars which they also would get into. They would then receive further instructions upon how to proceed.

4. On both the occasions that they attended at the carpark they were unable to implement the plans either on account of a shortage of a suitable victims or on account of there being too many other people present.

5. The two burglaries were relatively straight forward burglaries of domestic premises. The amount of property stolen was not very great.

6. Saied, J. the sentencing judge adopted 18 years as his starting point for the first two counts. He did this on the authority of the A.G. v. KWOK Yun-hung [1995] 2 HKCLR 198. He adopted a starting point of four years for the two burglaries and adopting the totality principle and giving the Applicant a 1/3 discount for his pleas arrived at 11 years' imprisonment.

7. In his home made Grounds of Appeal the Applicant repeats the matters which were advanced by his counsel when mitigating the offences at the hearing. He referred to the difficult circumstances in Shenzen and his reluctance to commit the offences. In this connection the Applicant was of course bound by the agreed facts upon which the sentences were based.

8. As pointed out by Saied, J. this was a carefully planned robbery which incorporated within its scope the use of a firearm and an imitation firearm. The Judge also had to take into account the two burglaries which were separate and discreet offences.

9. Although the sentences were heavy sentences we cannot say that they were either wrong in principle or manifestly excessive. This application is without merit and is dismissed. We order that 3 months of the time spent by the Applicant in custody will not count towards the sentence he is serving.